Legal experts say GPs are able to take strike action

Legal experts have said that withdrawing services for a day is an option on the table for GPs – but a ‘lack of appetite’ for strikes in the profession could represent an issue.

The BMA said it was looking at ‘all options’, including ‘industrial or collective action’ after it rejected a contract offer from NHS England, which proposed linking more funding to access measures and mandating practices to offer automated access to patient records by 31 July.

Last week, the BMA said the Government had expressed a willingness to make changes to incentive schemes but that GPs would still be ‘forced to’ consider actions if a contract ended up being imposed.

It has been thought that ‘strike’ action, or something similar – with GPs withdrawing services for a day – would not be possible because GPs are not employed.

But legal experts have told Pulse that this kind of option was a possibility for GP practices. However, GP leaders have warned that there is little appetite for such action.

The initial contract offer, which was labelled by the BMA as ‘insulting’, included a £305m in the investment and impact fund (IIF) – the incentive fund for PCNs and an access marker added to the QOF, plus the inclusion of the cholesterol-lowering injection, Inclisiran.

The offer also included no uplift to childhood immunisations or global sum, and pushing forward with pay transparency.

Professor Gregor Gall, an industrial relations professor at the University of Glasgow, told Pulse that GPs could theoretically decide to shut for the day and therefore breach their contract.

He said: ‘GP partners are in a situation of not being employed, so the issue is one not of an employment contract (of services) but a commercial one (for services).

‘Consequently, while the GPs and the BMA could term what they might want to as “strike” or “industrial action”, in actual fact, this would be a situation of breaking a commercial contract.

‘Depending upon the content of those contracts, there could be financial (likes fines) and other consequences for doing so (like termination).’

But he said that given existing demand pressures upon GPs and the lack of a new supply, any health authority is not likely to do much that would jeopardise the continuation of those contracts, for fear of creating even more disruption and eliciting a huge public backlash.

Daniel Wilde, a partner specialising in employment law at Harding Evans solicitors, explained that GPs can’t be in an industrial dispute with their employers because partners are not employees.

He added: ‘But they can be in a dispute with the contracting body, their commissioners. As long as the BMA’s ballot is lawful, there is no reason GPs cannot close for the day as a form of industrial action (or only offer urgent care).’  

A BMA spokesperson said: ‘We will be considering all options in relation to ensuring we see adequate funding, and safe working conditions.

‘GPC England recently rejected inadequate updates to the GP contract in England for this year, and continues working towards securing a safe and fair new contract for general practice for 2024 and beyond, when the current five-year framework comes to an end.

‘Discussions with GPC England and LMCs will be vital in shaping the direction we take next.’

But some GP leaders said they think there would be little support for strike action.

Dr Brian Balmer, chief executive of Essex LMC, said: ‘It is very unlikely that GPs would support such action as their relationship with patients and their links to their local community make this a very difficult choice.

‘Paradoxically NHSE policy which seems to be moving towards a salaried service would increase the chance of successful industrial action.’

Dr Peter Holden, GPC rep in Derbyshire, said that there is an appetite for strike action but ‘the risk is indigestible unless everybody does it.’

He added: ‘If I go on strike, not only am I in breach of contract and I might lose my contract, but the consequences of loss of contract are, I’m left with a surgery mortgage hanging over my head with no means to pay it, and redundancy payments to my staff with no means of paying that. I’d go bankrupt. 

‘I don’t think it’s unlikely, I think it’s going to require some effort. We are at the point now where, if we don’t get a new contract and we do not reduce our workload, there will be no general practice left because people are leaving in droves.’

Dr Clare Sieber, a former GPC representative for East/West Sussex, told Pulse that in her opinion GP leaders ‘have spoken loud and clear’ about industrial action in the past, and that she is ‘still a fan of the PCN DES withdrawal’ as it would not represent a breach of contract.

She said: ‘GPs want a new tariff-based contract which subsumes the PCN DES with more flexibility around private services.

‘We can negotiate this once we have progressed with industrial or collective action. There’s no other way we can get what we want.   

‘GPC members often complain that it can’t take collective mass action because the profession won’t follow it, but at the same time I don’t see it organising coordinated mass action that colleagues can really get behind. 

 ‘GPC needs to come out to practices with an honest appraisal of the situation and take control. Practices need to be balloted once GPCE is clear what it wants to negotiate on our behalf, and what it wants practices to do for it.’  

It is expected that England’s junior doctors will strike for 72 hours in March, subject to the result of a ballot which is due to be announced today.

GP trainees will not be barred from protesting during potential upcoming junior doctor strikes, but will only be able to join a picket line at or close to the hospital they are currently working in, the BMA has said.